Litigation Letter

Pro bono issues

The coming into force of s194 of the Legal Services Act 2007 bringing into effect pro-bono legal services on 1 October was marked by a two-page article by Jeremy Morgan, QC, in the Law Society Gazette of 13 November. Section 194 enables the court to make an order, equivalent to an order for between the parties costs, against the opponent of a litigant who has been represented pro-bono. However, unlike a normal costs order, under which the beneficiary is the successful litigant, the beneficiary of a s194 order is the Access to Justice Foundation charity. Mr Morgan stressed that a pro bono order is not an alternative to Community Legal Service funding, nor is it ever likely to have the resources, inclination or structure to make it so. He drew attention to a practical issue that needs careful consideration: ‘What happens in the case where there is a series of cost orders going either way. If the first order is made in favour of the Foundation and the second made in favour of the opponent, it will not be possible to direct a set-off of these orders, as they lack the mutuality essential for ordering set-offs. As a later court has no general power to revoke an earlier order, both will stand and be enforceable. There is an obvious unfairness about such a result. The solution is to invite the court in pro-bono cases to reserve costs until the trial or other final hearing, preferably with a note on the court file to indicate the order which would have been made but for this problem. The court conducting the final hearing can then make a single order, one way or the other, which reflects the justice of the case overall including the interlocutory successes and failures.’

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